Filed 2/9/23 P. v. Duenas CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MAXIMILIANO DUEÑAS,

Defendant and Appellant.

 D080225

 (Super. Ct. No. SCN339701)

APPEAL from an order of the Superior Court of San Diego County, 

Blaine K. Bowman, Judge. Affirmed.

Sheila O’Connor, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, 

Melissa A. Mandel and Joseph C. Anagnos, Deputy Attorneys General, for 

Plaintiff and Respondent.

In 2015, Maximiliano Dueñas pled guilty to transportation of a 

controlled substance and possession for sale of a controlled substance 

exceeding four kilograms. Dueñas now appeals from a January 2022 order
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denying his motion to vacate the judgment and withdraw his guilty plea 

under Penal Code section 1473.7.1 He argues that: (1) the trial court erred 

by deeming his motion untimely; (2) the trial court erred by finding 

insufficient evidence to show that he did not meaningfully understand the 

adverse immigration consequences of his plea; and (3) he sufficiently 

demonstrated that he would have rejected the plea had he correctly 

understood the resulting immigration consequences.

We find no error in the trial court’s determination that Dueñas failed to 

demonstrate that he did not meaningfully understand the adverse 

immigration consequences of his plea. Accordingly, we affirm the order 

without deciding his other arguments regarding the timeliness of his motion 

or prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2015, the District Attorney for San Diego County filed an 

information charging Dueñas with: (1) transportation of heroin (Health & 

Saf. Code, § 11352, subd. (a)); (2) possession for sale of heroin (Health & Saf. 

Code, § 11351); (3) transportation of methamphetamine (Health & Saf. Code, 

§ 11379, subd. (a)); and (4) possession for sale of methamphetamine (Health 

& Saf. Code, § 11378). The information also alleged that the quantity of 

heroin referred to in counts one and two exceeded one kilogram (Health & 

Saf. Code, § 11370.4, subd. (a)(1)) and the quantity of methamphetamine 

referred to in counts three and four exceeded four kilograms (Health & Saf. 

Code, § 11370.4, subd. (b)(2)). 

In June 2015, Dueñas completed a plea form and agreed to plead guilty

to count three of the information. On the form, Dueñas admitted that he 

1 Unless otherwise noted, all subsequent statutory references are to the 

Penal Code.
3

“transported a controlled substance” and “it exceeded 4 kilograms by weight.” 

The form included the signature of a sworn Spanish language interpreter 

verifying that the interpreter “truly translated for the defendant the entire 

contents of [the] form” and that Dueñas “indicated understanding of the 

contents of [the] form” to the interpreter. 

The form devoted an entire page to the immigration consequences of 

aggravated felonies, specifying “ANY CONVICTION OF A NON-CITIZEN 

FOR AN ‘AGGRAVATED FELONY’ AS DEFINED UNDER 8 U.S.C. 

1101(A)(43), WILL RESULT IN REMOVAL/DEPORTATION, EXCLUSION, 

AND DENIAL OF NATURALIZATION.” This page of the form expressly 

listed “TRANSPORTATION OF ANY CONTROLLED SUBSTANCE” as a 

crime that constitutes an aggravated felony. Further, Dueñas indicated his 

understanding of these immigration consequences on the form by personally 

initialing a box next to the following statement:

“I understand that if I am not a U.S. citizen, this plea of 

Guilty/No Contest may result in my removal/deportation, 

exclusion from admission to the U.S. and denial of 

naturalization. Additionally, if this plea is to an 

‘Aggravated Felony’ listed on the back of this form, then I 

will be deported, excluded from admission to the U.S., and 

denied naturalization.”

During his plea hearing on June 30, 2015, Dueñas testified, through an 

interpreter, that he understood the contents of the plea form, that his 

signature and initials on the plea form were authentic, and that he wished to 

proceed with the guilty plea. Dueñas confirmed that he had not consumed 

any drugs or alcohol in the previous 48 hours that would affect his ability to 

understand what was happening in court. Dueñas also responded “yes” when 

asked, “[d]o you understand that if you are not a U.S. citizen, this plea will 
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result in removal, deportation, exclusion from admission to the United States 

and denial of naturalization?” 

In September 2015, the trial court sentenced Dueñas to a negotiated 

“split sentence” of five years in prison, followed by three years of mandatory 

supervision. 

In June 2017, Dueñas was released from prison and transferred into 

the custody of United States Immigration and Customs Enforcement. One 

month later, he was deported to Mexico. Since the time of his deportation, 

Dueñas has been living in Mexico. Likewise, at the time of his arrest in 2014, 

Dueñas was living in Mexico and had a tourist visa to visit the United States. 

There is no evidence in the record that Dueñas ever lived in the United 

States.

In July 2021, Dueñas filed a motion to vacate the judgment and 

withdraw his guilty plea under section 1473.7, subdivision (a)(1). In this 

motion, Dueñas argued that he was entitled to relief because, at the time of 

his plea, he was unable to meaningfully understand the “actual or potential 

adverse immigration consequences” of his conviction. The motion set forth 

allegations that Dueñas’s original defense attorney, who negotiated the pleas

with the prosecutor, “did not advise [Dueñas] of the direct adverse 

immigration consequences of pleading guilty to transportation of a 

control[led] substance.” Dueñas alleged that if he had been properly made 

aware of the possible implications of his plea to his immigration status, “he 

would have rather taken the risk of going to trial.” He claimed that his plea, 

submitted on the basis of an improper lack of understanding of its adverse 

immigration consequences, was the product of prejudicial error, as 

contemplated under section 1473.7, subdivision (a)(1).
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The People filed an opposition to Dueñas’s motion. The People first 

argued that Dueñas’s motion was untimely because it was not filed with 

reasonable diligence pursuant to section 1473.7, subdivision (b)(2). Second, 

the People asserted that Dueñas failed to meet his burden of proving by a 

preponderance of the evidence that an error had occurred. For support, the 

People cited Dueñas’s signed plea form, which contained initialed

affirmations by Dueñas that he understood the adverse immigration 

consequences of his pleas, and his plea colloquy with the trial judge, during 

which Dueñas was advised of the potential adverse immigration 

consequences of his plea and confirmed under oath that he understood. The 

People’s opposition noted that the only evidence to the contrary proffered by 

Dueñas was his own “self-serving statement.” Finally, the People alleged 

that Dueñas also failed to meet his burden to establish prejudice. 

The court held a hearing on Dueñas’s motion on January 31, 2022. 

Dueñas testified on his own behalf. On direct examination, Dueñas 

emphasized his ties to the United States, testifying that he has many family 

members, including his wife, who primarily live in the United States. 

According to Dueñas, he works remotely in his Tecate, Mexico home for a 

Tijuana satellite office of an American-based company. Dueñas testified that 

both his wife and son have U.S. citizenship. Regarding the circumstances of 

his plea, Dueñas testified that his attorney at the time, Jose Garcia Badillo, 

never spoke to him about deportation or how to fight his immigration case. 

Dueñas further testified that Badillo, using an interpreter, read the plea form 

to him hastily “like he wasn’t reading everything the way he should have.” 

On cross-examination, Dueñas admitted that his immigration status 

was not a material factor in his decision to plead guilty while in jail, 

testifying that “I was worried about how much time I would be locked up. I 
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was afraid being in there. I couldn’t think about my immigration situation.” 

More directly, Dueñas responded “no” when asked by the prosecutor, “[a]t the 

time when you entered the plea, you weren’t thinking about the immigration 

situation then, either, were you?” 

After Dueñas had finished testifying, the People called Badillo as a 

witness. Badillo testified that in his practice as a criminal defense lawyer, he 

typically determines a client’s immigration status and considers how the 

charges may affect that status, and he recalled doing so for Dueñas. Badillo

discussed the immigration consequences of the charges with Dueñas and 

made efforts to negotiate an “immigration-friendly plea” for him, but the 

prosecutor was unwilling. According to Badillo, “[u]ltimately, Mr. Dueñas 

believed it was not worth the risk of the potential heftier jail sentence and 

decided to plea.” Badillo specifically talked to Dueñas about the line on the 

plea form regarding immigration consequences and explained to him the page 

on aggravated felonies subject to deportation. Badillo testified, “I’m sure we 

had a discussion about [immigration consequences] when he signed the plea 

agreement. We had been discussing it through the entirety of the case, 

because that was an issue for him.” Badillo ultimately negotiated the split 

sentence for Dueñas to avoid a lengthier prison term. 

On cross-examination, Badillo confirmed that in his practice as a 

criminal defense attorney, he “routinely consult[s] with immigration 

attorneys” and has received continuing legal education on immigration 

consequences since 2001. He further testified: “This issue is very personal to 

me. My parents were immigrants and did not become U.S. citizens until I 

was in law school. I take it to heart, especially Latino people and 

representing them, making sure they understand the process. That’s one of 

the main reasons I became an attorney, to represent them.” 
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At the conclusion of the hearing, the trial court orally denied Dueñas’s 

motion. As a procedural matter, the court found that the motion was not 

timely filed as required by section 1473.7, subdivision (b)(2). On the merits, 

the court found the testimony of Badillo “to be quite credible,” and 

determined that “the efforts by Mr. Badillo were focused on the immigration 

consequences, and he did everything that was possible to ty to work out a 

deal that would allow [Dueñas] to stay here in the country.” By contrast, the 

court stated, “I don’t find the testimony of Mr. Dueñas to be credible.” 

Ultimately, the court found that Dueñas was “accurately informed of the 

consequences of his plea with respect to immigration consequences” and ruled 

that Dueñas failed to meet his burden on the merits of his motion. 

DISCUSSION

Dueñas argues that the evidence establishes that he did not 

meaningfully understand the adverse immigration consequences of his plea. 

We disagree. There is ample evidence in the record to support the trial 

court’s ruling that Dueñas understood the immigration consequences of his 

guilty plea, including his initials and signature on the plea form, his 

statements at the plea hearing, and the section 1473.7 testimony of Dueñas’s 

original defense counsel. The trial court had an opportunity to hear and 

observe the live testimony of both Dueñas and his original defense counsel at 

the hearing, and we are not in a position to second-guess its credibility 

determinations. Accordingly, we affirm the order on this ground without 

addressing the issues of timeliness or prejudice.

“[A]ppeals from section 1473.7 hearings are subject to independent 

review.” (People v. Alatorre (2021) 70 Cal.App.5th 747, 755 (Alatorre), citing 

People v. Vivar (2021) 11 Cal.5th 510, 525 (Vivar).) “[A]n appellate court 

exercises its independent judgment to determine whether the facts satisfy the 
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rule of law.” (In re George T. (2004) 33 Cal.4th 620, 634.) “When courts 

engage in independent review, they must give deference to the trial court’s 

factual determinations if they are based on ‘the credibility of witnesses the 

[superior court] heard and observed.’ ” (People v. Espinoza (Jan. 26, 2023, 

S269647) __ Cal.5th __, __ [2023 Cal. LEXIS 254, at p. *10] (Espinoza), 

quoting Vivar, at p. 527.)

The relevant portions of section 1473.7 provide:

“(a) A person who is no longer in criminal custody may file 

a motion to vacate a conviction or sentence for any of the 

following reasons:

“(1) The conviction or sentence is legally invalid due to 

prejudicial error damaging the moving party’s ability to 

meaningfully understand, defend against, or knowingly 

accept the actual or potential adverse immigration 

consequences of a conviction or sentence. A finding of legal 

invalidity may, but need not, include a finding of ineffective 

assistance of counsel. [¶] . . . [¶]

“(e) When ruling on the motion:

“(1) The court shall grant the motion to vacate the 

conviction or sentence if the moving party establishes, by a 

preponderance of the evidence, the existence of any of the 

grounds for relief specified in subdivision (a). . . .”

Section 1473.7 offers “postconviction relief for noncitizens who pleaded 

guilty to a crime without fully comprehending the immigration consequences 

that might follow.” (Alatorre, supra, 70 Cal.App.5th at p. 752, citing Stats. 

2016, ch. 739 (Assem. Bill No. 813) § 1.) To receive relief under the statute, 

“[t]he defendant must first show that he did not meaningfully understand the 

immigration consequences of his plea. Next, the defendant must show that 

his misunderstanding constituted prejudicial error.” (Espinoza, supra, [2023 

Cal. LEXIS at p. *10].)
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A defendant seeking to withdraw his plea based on inadequate 

advisement of immigration consequences must corroborate such assertions 

with “ ‘objective evidence.’ ” (Vivar, supra, 11 Cal.5th at p. 530; see also

People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 223–224 [“An allegation that 

trial counsel failed to properly advise a defendant is meaningless unless there 

is objective corroborating evidence supporting appellant’s claimed failures.”];

People v. Mejia (2019) 36 Cal.App.5th 859, 872 [“In a postconviction setting, 

courts should not simply accept a defendant’s statement of regret regarding 

the plea, courts should also ‘look to contemporaneous evidence to 

substantiate a defendant’s expressed preferences.’ ”].)

Dueñas contends that “[t]he record provides sufficient objective 

evidence to show by a preponderance of the evidence that he did not 

meaningfully understand the immigration consequences of pleading guilty.” 

For support, he cites: (1) his declaration dated July 9, 2021; (2) his testimony 

at his section 1473.7 hearing; (3) the testimony of Badillo at Dueñas’s section 

1473.7 hearing; and (4) Dueñas’s “age and his inexperience with the United 

States, the criminal justice system and the immigration proceedings” at the 

time of his plea.

We reject this argument. Dueñas’s reliance on his own declaration and 

testimony is misplaced because the trial court found the contrary testimony 

of defense attorney Badillo to be “quite credible” and Dueñas’s testimony not 

credible. Badillo’s testimony that he advised Dueñas of the immigration 

consequences of his guilty plea was also corroborated by Dueñas’s initials and 

signature on the plea form and his sworn statements at the plea hearing. 

Because the trial court heard live testimony from both Dueñas and Badillo at 

the section 1473.7 hearing, we must defer to its resolution of this factual 

conflict. (Espinoza, supra, [2023 Cal. LEXIS at p. *10]; Vivar, supra, 11 
10

Cal.5th at p. 527; Alatorre, supra, 70 Cal.App.5th at p. 755.) Moreover, the 

issues Dueñas highlights regarding uncertainties in Badillo’s recollection 

were for the trial court to weigh in making its credibility determination—

they do not make Badillo’s testimony so inherently improbable that we may 

reject it on appeal. (See People v. Ennis (2010) 190 Cal.App.4th 721, 725 

[“inherently improbable” standard for rejecting testimony on appeal “means 

that the challenged evidence is ‘unbelievable per se’ . . . , such that ‘the things 

testified to would not seem possible’ ”].) 

Finally, Dueñas’s age and inexperience, although undoubtably

relevant, do not outweigh as a matter of law the substantial evidence that he

meaningfully understood the immigration consequences of his guilty plea. 

His plea form contained an initialed acknowledgement that he would be 

subject to adverse immigration consequences as a result of his conviction, and 

an interpreter verified his understanding. At his plea hearing, Dueñas

confirmed that he understood he would be subject to these adverse 

immigration consequences. Badillo’s testimony reveals that immigration 

discussions were part of his consultations with Dueñas throughout the 

proceedings, including in connection with the guilty plea. Dueñas’s mere 

status as a young Mexican national, inexperienced with criminal proceedings

and immigration policies in the United States, does not overcome the 

numerous facts in the record establishing that his plea was duly informed 

with respect to immigration consequences.
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DISPOSITION

The January 31, 2022 order denying Dueñas’s section 1473.7 motion is 

affirmed.

BUCHANAN, J.

WE CONCUR:

McCONNELL, P. J.

O’ROURKE, J.